THE BLOG

The Ongoing Need for Military Commissions

09/04/2014 17:01 BST | Updated 09/06/2014 10:59 BST

Do not be fooled by the conviction of Suleiman Abu Ghaith, al-Qaeda spokesman and Osama bin Laden's son in law. His successful prosecution in a civilian court does not mean all terrorists can be tried in this way. Military commissions such as those in Guantanamo Bay will continue to play a vital role.

President Barack Obama acknowledged within months of being elected that military commissions allow for 'the protection of sensitive sources [...] methods of intelligence-gathering ... that cannot always be effectively presented in civilian courts'. Yet Abu Ghaith's conviction seems to undercut the need for them. After all, if a terrorist as close to the al Qaeda leadership as Abu Ghaith can be captured abroad, interrogated for evidence and then prosecuted in downtown New York, surely so could any major terrorist?

Civilian courts certainly can be effective with al-Qaeda related terrorism cases. One oft-cited Justice Department statistic is that 494 people have been convicted in civilian courts for terrorism-related crimes since September 2001. In comparison, military commissions have only successfully convicted six. (Two convictions were overturned).

Yet a study of terrorism convictions I co-authored last year shows that, between 1997 and 2011, only 147 of those convicted were al Qaeda or al-Qaeda inspired. The majority were also U.S. citizens -- so automatically ineligible for a trial at Guantanamo.

In addition, comparing arrests that took place in the U.S. with those abroad (often on the battlefield) is a false comparison. Presenting evidence in a civilian court against a rookie, aspirational terrorist targeted in an FBI sting is far simpler than presenting evidence extracted from an Afghanistan or Pakistan war zone. In fact, only seven individuals (including Ghaith) who have committed an al Qaeda-related offense and were captured abroad have ever been tried in the US -- close to the number of those tried by military commissions.

There is another reason why the civilian route is not always appropriate. Certain al Qaeda fighters are such high value intelligence resources that a lengthy period of interrogation will be required. Treating individuals via the military route - and therefore not providing immediate access to a lawyer - has allowed for much more in-depth interrogations to take place. Though Abu Ghaith was willing to talk after being read his Miranda rights, there is no evidence to suggest all other terrorists will follow suit.

The Obama administration tried an alternative approach with Ahmed Warsame, the key liaison between al-Shabaab in Somalia and al-Qaeda in the Arabian Peninsula, in 2011. Rather than be transferred to the U.S. or sent to Guantanamo Bay, Warsame was interrogated for months while detained on a U.S. ship in the Arabian Sea. However, a more viable alternative than this will likely be needed in the long term.

A civilian court may be the preferable location to try terrorism cases. But it is not the only valid one. Military commissions are an appropriate venue for those terrorists accused of committing war crimes. While progress may be slow now in these cases, this is not necessarily a catastrophe. The war against al Qaeda will be long, and legal precedents now being established in pretrial hearings will help guide similar cases in the future.

Rather than point scoring on the effectiveness of either, there should be a broader acceptance not only that both court systems are valid; but that both are needed to fight terrorism effectively.